Introduction.

Whilst the notion of a systematic differentiation between the tripartite functions of government has been present in human society for hundreds of years, it has also been subject to perpetual controversy throughout this time. Although reference to the separation of powers doctrine dates back to the Biblical prophets,[1] it is arguable that the doctrine itself lacked a prevailing influence in academia prior to the observations of Baron De Montesquieu[2] during the eighteenth century, which was inturn based upon the writings of Aristotle,[3] and John Locke.[4]

Since that time, the doctrine has been criticised as unsound due to the fact that some conferral of law-making powers has been made upon the executive, resulting in “countless rules affecting citizens [being] made by officials unfettered by any democratically established principles … [and therefore such laws] … are haunted by the spectre of invalidity”.[5] Criticism has also arisen in response to the ascension of the quasi-judicial tribunal, and the alleged ineffective monitoring and supervision of these tribunals by those with the constitutionally vested judicial power. Overall, these combined criticisms give rise to the argument that the separation of powers doctrine is in fact imprecise and inconsistent, and therefore unfit to support. One such critic who subscribes to this opinion, was Geoffrey Marshall, who stated that the doctrine is so “infected” with imprecision and inconsistency, that it may be considered as “little more than a jumbled portmanteau of arguments of policies which ought to be supported or rejected on other grounds”.[6]

Contextual Relevance.

Geoffrey Marshall was a constitutional theorist whose work was focused upon the application and implication of the British and United States Constitutions to their respective national societies. Although it is therefore unlikely that his aforementioned comment was entirely borne out of Australian experience at the Commonwealth level of government, it is probable that his experience with the Australian Constitution was a significant factor in the rationale behind his judgement. Marshall’s views are aligned with the distinction that the separation of powers should be “organic or formal”[7] in nature, and whilst he conceded that a literal distinction between the powers was practically unworkable (as well be shown in the following), he firmly believed that any implementation of the doctrine must be done in a manner as strict and as pure as possible.

Critical Analysis.

This essay seeks to answer two interconnected questions. Firstly, whether or not Marshall’s adverse comments were valid, especially given the apparent impossibility that such a doctrine could ever be perfectly applied within government? Secondly, whether the foundation of this expectation was enough to warrant such a forthright and demeaning comment? On both counts, this paper must answer in the negative.

In his exploration of the separation of powers doctrine, Montesquieu went so far as to say that “[t]here would be an end to everything if the same person or body, whether of the nobles or of the people, were to exercise all three powers”,[8] and that the underlying force of the doctrine is the protection of liberty and the rejection of tyranny. Indeed, one finds it quite fascinating to even attempt to imagine what a strict application of the doctrine would look like in reality. Such a vision was undertaken by Hood Phillips and Jackson,[9] which lead them to resolve that although such a complete separation of powers was theoretically impossible, its appearance in reality would only serve to “bring government to a standstill”.[10] As summarised by Carney; “[t]he strict doctrine is only a theory and it has to give way to the realities of government where some overlap is inevitable. But while permitting this overlap to occur, a system of checks and balances has developed (and needs to continue to develop)”,[11] and it is these checks and balances which retain the control and authority of the system – and do not serve act as a response to its failure. Ironically, it seems that the apparent imprecision between these powers, can also have the affect of maintaining justice between them … however which effect is more prevalent, will depend upon a person’s definition of ‘power’, as well as the degree and composition of the imprecision, as is discussed below.

Defining ‘Power’.

When recalling that Marshall has stated that it is the separation of powers doctrine which is in itself ‘imprecise’, one must also remember that the mast majority of attempts at defining the concept of ‘power’ have remained imprecise within themselves. In the case of Huddart, Parker & Co Pty Ltd v. Moorehead,[12] Griffith CJ held that power could refer to “the power which every sovereign authority must of necessity have”,[13] but this definition is so indistinct and inexplicit, that any attempt to solely rely upon it would be fraught with danger. In R v. Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd,[14] Kitto J held that “it has not been possible to frame an exhaustive definition of judicial power … [b]ut this is not to say that the expression is meaningless”,[15] and Windeyer J commented that “the concept [of judicial power] seems … to defy, perhaps it were better to say transcend, purely abstract conceptual analysis”.[16] Likewise, the case of R v. Quinn; Ex parte Consolidated Foods Corporation,[17] saw Aickin J state that “all that courts have been able to say towards a definition has been the formulation of negative propositions by which it has been said that no one of a list of factors is itself conclusive and perhaps the presence of all is not conclusive”.[18] Although the above mentioned cases all specifically relate to the concept of ‘judicial power’, it would not be a fallacy to extrapolate these sentiments of the court to apply to definitions of legislative or executive power as well, and this would be inline with the view and enunciated by Vile,[19] whereby he held power to constitute “the possession of the ability through force or persuasion to attain certain ends [and] the legal authority to do certain acts”.[20]

Imprecision as between the Legislative and Executive Powers.

Although the American position on this issue is complicated by the operation of the maxim delegates no potest delegare (a delegate may not itself delegate), [21] this does not affect the Australian position.[22] The High Court of Australia has previously held that it would be unattainable to achieve a strict separation of powers – especially as between the legislative and executive functions (Chapters I and II of the Constitution). This was held in the case of Victorian Stevedoring & General Contracting Co Pty Ltd & Meakes v. Dignan,[23] whereby Dixon J conceded that although this deduction might “appear to involve an inconsistency or … an asymmetry”,[24] it would not mean that a legislative provision confiding authority to the executive would automatically be valid, even if it still remained within the realms and scope of that conferred subject matter. A system of checks and balances would still exist, with “no considerations of weight affecting the validity of an Act creating a legislative authority”.[25] As a result, this judgement was handed down in affirmation with that of the Court in Roche v. Kronheimer,[26] which itself affirmed the cases of Farey v. Burvett,[27] Pankhurst v. Kiernan,[28] Ferrano v. Pearce,[29] and Sickerdick v. Ashton.[30] As time would have it, this principle of Dignan’s Case was also later affirmed by Radio Corporation Pty Ltd v. Commonwealth.[31]

Thus, this essay agrees with these cases to the extent that the exercise of power can be validly conferred so long as such a conferral does not deny a constitutional rule.[32] Although it has been stated that “because the Executive thus legislates, the Executive and the legislature are not separate in function”,[33] this should not mean that the Executive should be given all powers of the legislature. The executive must continually be subject to authorisation by the enabling statute, which, although a question for the courts to decide, will help retain any apparent inconsistency or imprecision within the controlling reach (and therefore power) of the constitutionally vested legislature. Hence, the separation of powers itself maintains consistency and strength despite the ostensible ambiguity and discrepancy, and the sting from Marshall’s judgement may continue to be averted.

Imprecision as between the Judicial Power and ‘other’ Powers.

This issue was also examined in Dignan’s Case, where Dixon J sought to examine the authorities of New South Wales v. Commonwealth (Wheat Case),[34] Waterside Workers’ Federation of Australia v. JW Alexander Ltd,[35] and British Imperial Oil Co v. Federal Commissioner of Taxation,[36] which resulted in the Court adopting a much less conceded stance as to the strict separation of powers when it includes the judicial arena. These views were subsequently affirmed by the High Court in R v. Kirby; Ex parte Boilermakers’ Society of Australia,[37] where it was held that the powers of the federal judicature must be “paramount and limited”,[38] due to the fact that “[n]o part of the judicial power can be conferred in virtue of any other authority or otherwise than in accordance with the provisions of Chap III [of the Constitution]”[39] and furthermore because “Chap III does not allow powers which are foreign to the judicial power to be attached to the courts created by or under that chapter for the exercise of the judicial power of the Commonwealth”.[40] Yet this case, and indeed its ratio, remains controversial to this day, due to its now almost 50-year-old requirement for strict and rigid quarantining of judicial from non-judicial powers,[41] and the fact that it was founded upon a 4:3 decision. However, although there have been several cases whereby the High Court has seemingly invited an argument for its overruling,[42] it still remains ‘good law’ to this day, despite the fact that controversy remains unresolved. Either way, this is further proof that the Australian Constitutional system is seeking to – and achieving – the preservation of the separation of powers doctrine in its purist form when concerned with the judicial power, and hence making it increasing unlikely that this was the issue to which Marshall’s grievance was directed. Or that if Marshall’s judgement was directed in this manner, it was ill-founded.

Conclusion.

As can now be seen, it would be going too far to agree with Mr. Marshall by conceding that the separation of powers principle is “infected” with these issues of imprecision and inconsistency, and thus may be counted “little more than a jumbled portmanteau of arguments”. With specific regard to the Australian context, it has been shown that any such inconsistency as between the legislature and executive is only very mild in nature and scope, and there is strong court-enforced support to keep any imprecision surrounding the judicial power to nil. Therefore, it is highly improbable that this judgement has been borne out by Australian experience at the Commonwealth level of government.

Overall, once a governmental system seeks to invoke regulation and management of a society, it will ultimately be subject to the whims and conduct of such a society, and that will generate some inconsistency and imprecision as society continually places adaptive pressure upon policies or doctrines. This can be seen in the previously examined cases where legislative and executive powers are seemingly exercised by those outside the respective field as a response to public compulsion for expeditious processes and simplified logistics within government, or in such cases where the “principle of responsible government requires the Prime Minister and the other government ministers who administer the executive to be members of parliament”.[43]

Therefore, we must either learn to be content with a functioning system of government with alleged empirical flaws, or the alternative of a theoretically precise but scarcely effective government. In the words of Sir Harry Gibbs, “[a] substantial separation [between the legislature and the executive] could have been maintained even though some persons could have taken part in the performance of both”,[44] and this would still retain the principle of responsible government.

Therefore, although there may exist some degree of imprecision and inconsistency within the application of the separation of powers doctrine to Australia, this is not to a scale that would contradict the doctrine of responsible government, and thus it must be stated that the doctrine of the separation of powers seeks to remain as a valid argument for virtuous policies, and not a disorderly muddle of arguments, despite Marshall’s claims.

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